Citation Nr: 1014465
Decision Date: 04/15/10 Archive Date: 04/29/10
DOCKET NO. 06-28 062A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to an initial rating higher than 10 percent for
Type II Diabetes Mellitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Biswajit Chatterjee, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the military from July
1966 to July 1968.
This appeal to the Board of Veterans' Appeals (Board) is from
a January 2005 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Chicago, Illinois, which
granted the Veteran's claim for service connection for
Type II Diabetes Mellitus as a residual of exposure to
herbicides in Vietnam and assigned an initial 10 percent
rating retroactively effective from January 11, 2005, the
date of receipt of this claim. The Veteran appealed for a
higher initial rating. See Fenderson v. West, 12 Vet. App.
119, 125-26 (1999) (when a Veteran appeals his initial
rating, VA must consider whether he is entitled to a "staged"
rating to compensate him for times since the effective date
of his award when his disability may have been more severe
than at others).
In January 2009, the Board issued a decision granting two
other claims the Veteran also had appealed - for service
connection for bilateral hearing loss and tinnitus. Whereas
the Board remanded his remaining claims - for service
connection for dyspepsia (claimed as a stomach disorder) and
for a higher initial rating for his diabetes, to the RO via
the Appeals Management Center (AMC) for further development
and consideration.
In a January 2010 decision since issued, on remand, the AMC
granted service connection for gastric ulcer with
gastroesophageal reflux disease (GERD) and dyspepsia (claimed
as stomach problems) and assigned an initial 10 percent
rating for this disability retroactively effective from
August 12, 2004, the date of receipt of this claim. The
Veteran has not since appealed either this initial rating or
effective date assigned for this disability, so this claim is
no longer at issue. See Grantham v. Brown, 114 F.3d 1156
(Fed. Cir. 1997) (indicating that, where an appealed claim
for service connection is granted during the pendency of the
appeal, a second notice of disagreement (NOD) thereafter must
be timely filed to initiate appellate review of the claim
concerning "downstream" issues such as the compensation level
assigned for the disability and the effective date).
See, too, 38 C.F.R. § 20.200 (2009).
The Board sees that the Veteran's representative, in a March
2010 informal hearing presentation, sought referral to the RO
this claim of service connection for gastric ulcers. But, as
mentioned, this claim already has been granted.
As for the remaining claim for a higher initial rating for
the diabetes, the AMC issued a supplemental statement of the
case (SSOC) in January 2010 continuing to deny this claim and
has since returned the file to the Board for further
appellate consideration of this sole remaining issue.
FINDING OF FACT
Although the Veteran follows a restricted diet as a means of
treating his diabetes, he does not use insulin or an oral
hypoglycemic agent or require regulation of his activities.
CONCLUSION OF LAW
The criteria are not met for an initial disability rating
higher than 10 percent for the Type II Diabetes Mellitus.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321,
4.1-4.7, 4.10, 4.21, 4.119, Diagnostic Code 7913 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
In the interest of clarity, the Board will initially discuss
whether the claim has been properly developed for appellate
review. The Board will then address the claim on its merits,
providing relevant VA laws and regulations, the relevant
factual background, and an analysis of its decision.
I. The Duties to Notify and Assist
As provided by the Veterans Claims Assistance Act (VCAA), VA
has duties to notify and assist claimants in substantiating
claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§
3.102, 3.156(a), 3.159 and 3.326(a) (2009).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
obtain and assist the claimant in obtaining; and (3) that the
claimant is expected to provide. See 38 C.F.R. §
3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-
74 (2002).
These VCAA notice requirements apply to all five elements of
a service-connection claim: (1) Veteran status; (2)
existence of a disability; (3) a connection between the
Veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).
Further, this notice must include information that a
downstream disability rating and an effective date for the
award of benefits will be assigned if service connection is
granted. Id., at 486.
Ideally, VCAA notice should be provided prior to an initial
unfavorable decision on a claim by the RO. Pelegrini v.
Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If,
however, for whatever reason it was not, or the notice
provided was inadequate, this timing error can be effectively
"cured" by providing any necessary VCAA notice and then
going back and readjudicating the claim - such as in a
statement of the case (SOC) or supplemental SOC (SSOC), such
that the intended purpose of the notice is not frustrated and
the Veteran is given an opportunity to participate
effectively in the adjudication of the claim. See Mayfield
v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield
IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United
States Supreme Court made clear that a reviewing court, in
considering the rule of prejudicial error, is precluded from
applying a mandatory presumption of prejudice rather than
assessing whether, based on the facts of each case, the error
was outcome determinative. In Sanders, the Supreme Court
rejected the lower Federal Circuit's framework (see Sanders
v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007))
that all VA notice errors are presumptively prejudicial, in
part, because it was "complex, rigid, and mandatory." Id.,
at 1704. The Supreme Court rejected the Federal Circuit's
analysis because it imposed an unreasonable evidentiary
burden on VA to rebut the presumption and because it required
VA to demonstrate why the error was harmless, rather than
requiring the appellant - as the pleading party, to show the
error was harmful. Id., at 1705-06. The Supreme Court
stated that it had "warned against courts' determining
whether an error is harmless through the use of mandatory
presumptions and rigid rules rather than case-specific
application of judgment, based upon examination of the
record." Id., at 1704-05. Thus, it is clear from the
Supreme Court's analysis that, while the Veterans Court
may conclude generally that a specific type of error is more
likely to prejudice an appellant, the error must nonetheless
be examined in the context of the facts of the particular
case. Id.
The Veterans Court initially held in Vazquez-Flores v. Peake,
22 Vet. App. 37, 48 (2008), that prejudicial deficiencies in
the timing or content of a VCAA notice can be cured by
showing the essential fairness of the adjudication will not
be affected because: (1) the defect was cured by actual
knowledge on the part of the claimant ("Actual knowledge is
established by statements or actions by the claimant or the
claimant's representative that demonstrates an awareness of
what was necessary to substantiate his or her claim.")
(citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007));
(2) that a reasonable person could be expected to understand
from the notice what was needed; or (3) that a benefit could
not have been awarded as a matter of law. Sanders, 487 F. 3d
at 889. Additionally, consideration also should be given to
"whether the post-adjudicatory notice and opportunity to
develop the case that is provided during the extensive
administrative appellate proceedings leading to the final
Board decision and final Agency adjudication of the claim ...
served to render any pre-adjudicatory section 5103(a) notice
error non-prejudicial." Vazquez-Flores, 22 Vet. App. at
46. See also Overton v. Nicholson, 20 Vet. App. 427, 435
(2006) (finding the Board had erred by relying on various
post-decisional documents for concluding adequate 38 U.S.C.A.
§ 5103(a) notice had been provided to the appellant, the
Veterans Court nonetheless determined the evidence
established the Veteran was afforded a meaningful opportunity
to participate effectively in the adjudication of his claims,
and therefore found the error harmless).
The Veterans Court further held in Vazquez-Flores v. Peake
that, for an
increased-compensation claim, 38 U.S.C. § 5103(a) requires,
at a minimum, that VA notify the claimant that, to
substantiate the claim, the medical or lay evidence must show
a worsening or increase in severity of the disability and the
effect that such worsening or increase has on the claimant's
employment and daily life.
On appeal, however, in Vazquez-Flores v. Shinseki, 2009 WL
2835434 (Fed.Cir.), the Federal Circuit vacated and remanded
important respects of the Veterans Court's holding in
Vazquez-Flores, as well as a related case, Schultz v. Peake,
No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008).
Significantly, the Federal Circuit concluded that "the notice
described in 38 U.S.C. § 5103(a) need not be Veteran
specific." Similarly, "while a Veteran's 'daily life'
evidence might in some cases lead to evidence of impairment
in earning capacity, the statutory scheme does not require
such evidence for proper claim adjudication." Thus, the
Federal Circuit held, "insofar as the notice described by the
Veterans Court in Vazquez-Flores requires the VA to notify a
Veteran of alternative diagnostic codes or potential "daily
life" evidence, we vacate the judgments." Vazquez, 2009 WL
2835434, at 10.
The Veterans Court's other holdings in Vazquez-Flores appear
to be intact, that is, regarding the above discussion of
prejudicial deficiencies in timing or content.
In this case, letters satisfying the notice requirements of
38 C.F.R. § 3.159(b)(1) were sent to the Veteran in September
2004 and February 2009. These letters informed him of the
evidence required to substantiate his claim and of his and
VA's respective responsibilities in obtaining supporting
evidence. That initial letter addressed the requirements for
establishing his entitlement to service connection, since his
claim arose in that context, which, as mentioned, was granted
in the January 2005 decision at issue. Thus, as his
downstream claim for a higher initial rating was appealed
directly from the initial rating assigned following that
grant of service connection, no further § 5103(a) notice is
required. See Goodwin v. Peake, 22 Vet. App. 128 (2008); see
also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather,
once a NOD has been filed, for example contesting the rating
assigned, the notice requirements of 38 U.S.C. §§ 5104 and
7105 regarding rating decisions and SOCs control as to the
further communications with the Appellant, including as to
what evidence is necessary to establish a more favorable
decision with respect to downstream elements of the claim.
And the RO provided this required SOC in September 2006
discussing the reasons and bases for not assigning a higher
initial rating and citing the governing statutes and
regulations.
In any event, a March 2006 letter and the February 2009
letter already mentioned discussed the downstream disability
rating and effective date elements of the claim. And of
equal or even greater significance, after providing that
additional Dingess notice, the AMC readjudicated the claim
for a higher initial disability rating in the January 2010
SSOC - including considering the additional evidence
received in response to that additional notice. See again,
Mayfield IV and Prickett, supra. So the timing defect in the
provision of that additional notice has been rectified.
VA also fulfilled its duty to assist the Veteran by obtaining
all relevant evidence in support of his claim that is
obtainable, and therefore appellate review may proceed
without prejudicing him. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384
(1993). The RO obtained his service treatment records (STRs)
and VA and identified private treatment records and arranged
for a VA compensation examination in November 2005 to assess
the severity of his diabetes. And at the Board's request, on
remand, the AMC arranged for another VA compensation
examination in February 2009 to reassess the severity of this
condition. The record is inadequate and the need for a more
contemporaneous examination occurs only when the evidence
indicates the current rating may be incorrect. 38 C.F.R. §
3.327(a) (2009). Here, as mentioned, the last VA
compensation examination of the Veteran's diabetes was in
February 2009, so relatively recently. Consequently, another
examination to evaluate the severity of this disability is
not warranted because there is sufficient evidence, already
of record, to fairly decide this claim insofar as assessing
the severity of this condition. See Caffrey v. Brown, 6 Vet.
App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482
(1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992);
and Allday v. Brown, 7 Vet. App. 517, 526 (1995). Therefore,
the Board finds that VA has complied with the duty-to-assist
requirements.
II. Analysis-Entitlement to a Higher Initial Rating for
Type II Diabetes Mellitus
The Veteran contends his service-connected diabetes warrants
an even higher initial rating.
Disability ratings are determined by the application of VA's
Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R.
Part 4. The percentage ratings in the Rating Schedule
represent, as far as can be practicably determined, the
average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and their residual conditions in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
When a question arises as to which of two ratings apply under
a particular diagnostic code, the higher evaluation is
assigned if the disability more nearly approximates the
criteria for the higher rating; otherwise, the lower rating
will be assigned. See 38 C.F.R. § 4.7. When reasonable
doubt arises as to the degree of disability, this doubt will
be resolved in the Veteran's favor. 38 C.F.R. § 4.3.
The Board has considered the potential application of various
other provisions of the regulations governing VA benefits,
irrespective of whether they were expressly raised, as well
as the entire history of the Veteran's disability in reaching
its decision. See 38 C.F.R. 4.1; Schafrath v. Derwinski,
1 Vet. App. 589, 592 (1995).
Since the Veteran's claim arises from his disagreement with
the initial rating assigned following the grant of service
connection, a bit more discussion of the Fenderson case is
warranted. Fenderson v. West, 12 Vet. App. 119, 125-126
(1999). In this case, the Court noted the distinction
between a new claim for an increased evaluation of a service-
connected disability and a case, as here, in which the
Veteran expresses dissatisfaction with the assignment of an
initial disability evaluation where the disability in
question has just been service connected. In the former
situation, the Court held in Francisco v. Brown, 7 Vet. App.
55, 58 (1994), that the current level of disability is of
primary importance. See also, however, Hart v. Mansfield, 21
Vet. App. 505 (2007) (more recently indicating that,
in determining the current level of disability, this
necessarily also includes considering whether the rating
should be "staged"). And similarly, where, as here,
the Veteran has expressed dissatisfaction with the assignment
of an initial rating, VA must assess the level of disability
from the date of initial application for service connection
and determine whether the level of disability warrants the
assignment of different disability ratings at different times
over the life of the claim-a practice known as "staged
rating." Fenderson, 12 Vet. App. 125-126
The Veteran's Type II Diabetes Mellitus is currently
evaluated under DC 7913 as 10-percent disabling,
retroactively effective from January 11, 2005.
Under 38 C.F.R. § 4.119, DC 7913 (2009), diabetes mellitus
that is manageable by restricted diet only is rated 10
percent disabling. A higher rating of 20 percent is assigned
for diabetes mellitus requiring insulin and a restricted diet
or an oral hypoglycemic agent and a restricted diet.
The next higher rating of 40 percent is assigned when the
disability requires insulin, restricted diet, and regulation
of activities. An even higher 60 percent disability rating
is warranted when the diabetes mellitus requires insulin,
restricted diet, and regulation of activities with episodes
of ketoacidosis or hypoglycemic reactions requiring one or
two hospitalizations per year or twice a month visits to a
diabetic care provider, plus complications that would not be
compensable if separately evaluated.
The maximum possible 100-percent rating is warranted if the
diabetes requires more than one daily injection of insulin, a
restricted diet, and regulation of activities (avoidance of
strenuous occupational and recreational activities) with
episodes of ketoacidosis or hypoglycemic reactions requiring
three hospitalizations a year or weekly visits to a diabetic
provider, plus either progressive loss of weight and strength
or signs that would be compensable if separately evaluated.
In addition, compensable complications from diabetes mellitus
are evaluated separately, unless they are part of the
criteria used to support a 100 percent evaluation.
See Diagnostic Code 7913, Note (1). Quite significantly,
though, noncompensable complications are considered part of
the diabetic process under Diagnostic Code 7913. Id.
The Court has held that, in order to demonstrate a regulation
of activities, "medical evidence" is required to show that
both occupational and recreational activities have been
restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364
(2007). The phrase "regulation of activities" means
"avoidance of strenuous occupational and recreational
activities." Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R.
§ 4.119, Diagnostic Code 7913 (defining the term within the
criteria for a 100-percent rating)).
The evidence of record does not support a rating above the 10
percent currently assigned. 38 C.F.R. § 4.7. There is no
competent evidence that the Veteran's diabetes requires
insulin or an oral hypoglycemic agent. The November 2005 VA
examination report confirms that he is on a restricted diet
to control his diabetes, and he reported that he watches his
sugar intake. However, the November 2005 VA examiner also
indicated the Veteran is not on any medication such as
insulin to control his diabetes. Similarly, the February
2009 VA examination report observed that he requires no oral
medications and insulin injections to control his diabetes.
So, while his diabetes mellitus requires a restricted diet,
which is required for the current 10 percent rating, there is
simply no medical evidence that his diabetes also requires
insulin or an oral hypoglycemic agent, necessary for a higher
20 percent rating.
There is also no competent evidence that control of the
Veteran's diabetes requires restriction or regulation of his
activities. To the contrary, the November 2005 VA
examination report indicated he does not have to restrict his
activities to control his blood sugar and prevent
hypoglycemic reactions. He more recently reported to the
February 2009 VA examiner that his activities are restricted
due to his diabetes - particularly insofar as yard work,
exercise, walking, and mowing the lawn. In this regard, he
said that he must ensure he eats prior to engaging in these
activities or, else, have a snack handy so his blood sugar
does not get too low. But his lay allegations concerning
this are not tantamount to concluding there is a medical
restraint or regulation of his activities of the type
contemplated by DC 7913. There is simply no supporting
medical evidence on file suggesting a physician has
prescribed restriction or regulation of his activities to
treat the diabetes, especially not that he regulate them in
the sense of avoiding strenuous occupational and recreational
activities. See Camacho, 21 Vet. App. at 362. In fact, the
Veteran even admitted to the February 2009 VA examiner that
"his diabetic control is not so tenuous that he must avoid
strenuous occupational and recreational activities because of
its adverse impact on blood sugar levels." "Regulation of
activities" is an essential requirement for any of the even
higher 40, 60, and 100 percent disability ratings under DC
7913. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991)
(use of the conjunctive "and" in a statutory provision meant
that all of the conditions listed in the provision must be
met).
Moreover, the Veteran fails to demonstrate other requisite
manifestations of his diabetes to warrant a higher 60 or 100
percent rating. Indeed, he denied any hospitalizations for
ketoacidosis or hypoglycemic reactions during both the
November 2005 and February 2009 VA examinations. He also
told those examiners that he only sees his diabetic care
provider every two to three months. And although he showed
some weight loss following bariatric surgery in 2003,
he instead had gained weight by the time of his subsequent
November 2005 and February 2009 VA examinations. So, in
short, the medical evidence of record provides highly
probative evidence against his claim.
Despite the Veteran's contentions of diminishing eyesight at
his personal hearing, the December 2005 and February 2009 VA
eye examinations found no sign of diabetic changes in his
vision and no retinopathy. Some established diabetes
complications, although currently noncompensable, are already
separately service connected. This additional associated
disability includes peripheral neuropathy in his hands and
feet. He has separate 10 percent ratings for each foot, and
separate 0 percent (i.e., noncompensable) ratings for each
hand. So to the extent he has this additional impairment, he
already is being separately compensated for it.
In addition to the medical evidence, the Board has considered
the Veteran's personal assertions in support of his claim.
He is competent, as a layman, to report on that as to which
he has personal knowledge, such as his personal hearing
testimony of experiencing "dizzy spells." See Layno v.
Brown, 6 Vet. App. 465, 470 (1994). On the other hand, as a
layman, without the appropriate medical training and
expertise, he is not also competent to provide a probative
(persuasive) opinion on a medical matter, especially the
severity of his service-connected diabetes in terms of the
applicable rating criteria. Given the medical complexity of
this disability and its associated complications, supporting
medical findings are needed to address these rating
requirements. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir.
Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377
(Fed. Cir. 2007); Grottveit v. Brown, 5 Vet. App. 91, 93
(1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
Since the Veteran's diabetes has never been more than 10-
percent disabling at any time since the effective date of
service connection, the Board cannot "stage" this rating.
Fenderson, 12 Vet. App at 125-26. And as the preponderance
of the evidence is against this claim for an initial
disability rating higher than 10 percent, the "benefit-of-
the-doubt" rule is inapplicable, and the Board must deny the
claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert
v. Derwinski, 1 Vet. App. 49 (1991).
Extra-Schedular Consideration
There is no evidence of exceptional or unusual circumstances
to warrant referring this case for extra-schedular
consideration. 38 C.F.R. § 3.321(b)(1) (2009). See also
Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds no
evidence that the Veteran's diabetes has markedly interfered
with his ability to work, meaning above and beyond that
contemplated by his 10 percent schedular rating.
See 38 C.F.R. § 4.1, indicating that, generally, the degrees
of disability specified in the Rating Schedule are considered
adequate to compensate for considerable loss of working time
from exacerbations or illnesses proportionate to the severity
of the several grades of disability. See, too, Van Hoose v.
Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the
disability rating, itself, is recognition that industrial
capabilities are impaired).
Furthermore, there is no evidence of any other exceptional or
unusual circumstances, such as frequent hospitalizations,
suggesting the Veteran is not adequately compensated for this
disability by the regular rating schedule. His evaluation
and treatment has been primarily - if not exclusively, on an
outpatient basis, not as an inpatient, much less a frequent
inpatient. See Bagwell v. Brown, 9 Vet. App. 237, 238-9
(1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash
v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96
(August 16, 1996).
ORDER
The claim for an initial rating higher than 10 percent for
Type II diabetes mellitus is denied.
____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs